21 March 2017

The Attempt to Take the Judgement Out of Judging

Just call the pitches as balls and strikes, the tired analogy goes. Don't let judges act as legislators. They should, instead, be impartial interpreters of the law.

"Thou Shalt Not Kill," is one of the earliest surviving examples of a law. The text is pretty simple. Don't kill. The context makes it a little more subtle. So, in the context of war should you not kill? Conscientious objectors believe that. Do you have license to kill if you're hungry? Vegetarians don't think so. Can you kill in self defense? Or if you're really angry?

All legal text gets applied to a situation in a particular context of actions, intent, social norms and historical precedent. Those change from situation to situation and evolve over time. A judge has to consider this context when making judgement on the text or law.

Acting as a judge inescapably involves making judgments. To pretend that it doesn't shows really poor judgement.